First Nations Tax Commission Review Procedures Regulations
SOR/2007-239
Registration November 1, 2007
FIRST NATIONS FISCAL AND STATISTICAL MANAGEMENT ACT
First Nations Tax Commission Review Procedures Regulations
P.C. 2007-1664 November 1, 2007
Her Excellency the Governor General in Council, on the recommendation of the Minister of Indian Affairs and Northern Development, pursuant to section 33, paragraph 36(1)(b) and subsection 36(3) of the First Nations Fiscal and Statistical Management Acta, hereby makes the annexed First Nations Tax Commission Review Procedures Regulations.
First Nations Tax Commission Review Procedures Regulations
INTERPRETATION
Definitions
1. The following definitions apply in these Regulations.
"Act"
« Loi »
"Act" means the First Nations Fiscal and Statistical Management Act.
"party"
« partie »
"party" means an applicant or a first nation that is the subject of a review.
(a) in sections 8 to 36, a review conducted under subsection 33(1) of the Act; and
(b) in sections 37 to 42, a review conducted under subsection 33(2) of the Act.
REFERRAL TO PANEL
Referral to panel
2. (1) On receipt of a request for review made under subsection 33(1) of the Act, or on initiating a review under subsection 33(2) of the Act, the Commission may refer the review to a panel composed of one or more Commissioners.
Commission includes panel
(2) In these Regulations, a reference to the Commission includes a reference to a panel constituted under subsection (1).
DELIVERY AND FILING OF DOCUMENTS
Methods of delivery
4. (1) Delivery of a document may be made personally or by sending it by registered mail, fax or e-mail.
(a) in the case of an individual, by leaving the document with that individual or with a person at least 18 years of age residing at that individual’s place of residence;
(b) in the case of a first nation, by leaving the document with the individual apparently in charge, at the time of delivery, of the main administrative office of the first nation, or with the first nation’s legal counsel; and
(c) in the case of a corporation, by leaving the document with the individual apparently in charge, at the time of delivery, of its head office or one of its branch offices, or with an officer or director of the corporation or the corporation’s legal counsel.
Time of delivery
(3) Subject to subsection (4), a document shall be considered to have been delivered
(a) if delivered personally, on the day on which personal delivery is made;
(b) if sent by registered mail, on the fifth day after it is mailed;
(c) if sent by fax, on the day indicated on the confirmation of transmission; and
(d) if sent by e-mail, on the day indicated in the electronic confirmation that the e-mail has been opened.
Date of delivery to Commission
(4) Documents filed with the Commission are considered to have been delivered on the date stamped by the Commission under subsection 5(2) or (3).
Filing with Commission
5. (1) A document related to a review is filed with the Commission when it is delivered to its head office at
321-345 Yellowhead HighwayKamloops, British ColumbiaV2H 1H1fax: 250-828-9858e-mail: review@fntc.ca
Delivery stamp
(2) Subject to subsection (3), each document filed with the Commission shall be stamped with the date on which it was delivered.
Day of delivery
(3) A document filed with the Commission on a day that is not a business day or after 17:00 local time on a business day shall be stamped as having been delivered on the next business day.
Delivery of copies
6. When a document is filed with the Commission, the Commission shall deliver a copy of it to all parties and intervenors.
Authorization
7. (1) Documents filed on behalf of a party shall be signed by a person authorized by the party and shall set out the nature of the person’s authorization.
Proof of capacity
(2) The Commission may at any time require a person who has signed a document on behalf of a party to provide proof of the person’s authority to act in that capacity.
REVIEWS UNDER SUBSECTION 33(1) OF THE ACT
Procedure
(a) the name, address and telephone number, and any available fax number and e-mail address, of the applicant and of any representative acting on behalf of the applicant;
(b) an address for the delivery of documents, if different from the address of the applicant or representative;
(c) the name of the first nation, and the title of any local revenue law, in respect of which the request for review is made;
(d) the grounds for the request for review;
(e) a concise statement of the facts and any law on which the applicant intends to rely;
(g) any other information that the applicant believes the Commission requires in order to conduct the review; and
(h) if the review is requested on an expedited basis, the reasons for the urgency.
Accompanying documentation
(2) A request for review shall be accompanied by two copies of the applicant’s request for a remedy made to the council of the first nation pursuant to paragraph 33(1)(
b) of the Act and any related correspondence with the council of the first nation.
Deficient request
9. If a request for review does not contain the information required under section 8, the Commission shall
(a) identify what information is missing; and
(b) advise the applicant that the information must be provided before the Commission will proceed with the request for review.
Reply
10. (1) A first nation that is the subject of the review may file a reply to the request for review within 10 business days after the day on which the Commission delivers to it a copy of the request for review.
Content of reply
(2) A reply to a request for review shall identify the request for review to which the reply relates and set out
(a) the name, address and telephone number, and any available fax number and e-mail address, of the first nation and of any representative acting on behalf of the first nation;
(b) an address for the delivery of documents, if different from the address of the first nation or its representative;
(c) an outline of the position the first nation takes in response to the request for review;
(d) an admission or denial of each allegation of fact contained in the request for review;
(e) a concise statement of any additional facts and any law on which the first nation intends to rely;
(f) any other information that the first nation believes the Commission requires in order to conduct the review; and
(g) if the review is requested on an expedited basis, the reasons for the urgency.
Failure to reply
11. If a first nation fails to submit a reply to a request for review, the Commission may conduct the review solely on the basis of the submissions of the applicant and any intervenors.
Filing of response
12. (1) The applicant may file a response to the first nation’s reply within five business days after the day on which the Commission delivered a copy of the reply to the applicant.
Content of response
(2) A response to the first nation’s reply shall identify the request for review to which the response relates and admit or deny any additional statements of fact contained in the reply.
Affected persons
13. Within 10 business days after the filing of a request for review that meets the requirements of section 8, the Commission shall
(a) publish a notice of the review on an Internet site maintained by the Commission; and
(b) deliver a copy of the request for review to the first nation that is the subject of the review and to the First Nations Financial Management Board.
Adding intervenor
14. (1) Any person or organization may apply to the Commission to be added as an intervenor
(a) if a hearing is to be held, at any time before the hearing begins; and
(b) in any other case, at any time before a decision on the review is rendered.
(a) add the person or organization as an intervenor;
(b) direct the person or organization to provide the Commission with additional information in support of the application; or
(c) reject the application.
Adding Board as intervenor
(3) If the First Nations Financial Management Board makes an application in accordance with subsection (1), the Commission shall add the Board as an intervenor for the purpose of making representations as to the impact of any requested remedy.
Role of intervenors
(4) An intervenor may make written submissions and, if a hearing is being held, oral argument to the Commission.
Delivery of documents
15. On adding a person or organization as an intervenor, the Commission shall deliver to the person or organization copies of the request for review, any reply filed under section 10 and any response filed under section 12.
Statutory declarations
16. (1) The Commission may require confirmation, by way of a statutory declaration, of any facts alleged in a request for review or reply that have not been admitted.
Cross-examination on declaration
(2) A party who has submitted a statutory declaration shall make the deponent of the declaration available for cross-examination on the content of the declaration by any other party.
Amendments to request for review
17. An applicant may file with the Commission a request that a review already under way address additional issues that would otherwise be the subject of a separate review.
(a) accept evidence that is not given on oath or evidence that would not ordinarily be admissible in a court of law;
(b) at the request of a party, require another party to provide the Commission with any documents necessary to the conduct of its review; and
(c) direct that written submissions be filed.
Consolidation
19. The Commission may hold a single hearing in respect of more than one review or consolidate two or more reviews.
Required attendance
20. The Commission may require the parties to attend any conferences or meetings necessary to the conduct of a review.
Settlement
Settlement conferences
21. (1) A settlement conference may be scheduled by the Commission or at the request of a party at any stage in a review.
Presence of party
(2) If a representative is acting for a party, the Commission may direct that the party be present at the settlement conference or available to instruct the representative at that time.
Informal resolution
22. (1) The Commission may make settlement recommendations to the parties and may suspend the review to enable the parties to attempt to resolve the subject of the request for review informally.
Referral to mediation
(2) The Commission may recommend to the parties that the request for review be referred to formal mediation, in which case the Commission shall provide to the parties a roster of mediators who are independent of the Commission.
Consent order
23. If the parties reach an agreement, the Commission may make an order under paragraph 33(3)(
a) of the Act embodying that agreement.
Recommencement of review
24. If six months have elapsed since a review was referred to mediation or adjourned for other settlement discussions without a settlement being reached, the Commission shall recommence the review and notify the parties accordingly.
Hearings
Directed hearing
25. (1) The Commission may at any time direct that a hearing be held in respect of a request for review.
Notice of hearing
(2) If the Commission directs that a hearing be held, the Commission shall fix the time, date and place for the hearing and deliver a notice of the hearing to all parties and intervenors.
Conduct of hearings
26. (1) The Commission may direct that a brief written summary of the submissions of any party or intervenor be filed in advance of a hearing.
(a) proceed on the basis of an agreed statement of facts; or
(b) limit the number of witnesses to be called at a hearing.
Teleconferencing
(3) The Commission may hear oral evidence or oral submissions by teleconference.
Adjournments
(4) The Commission may adjourn a hearing for any time and on any terms that it considers appropriate.
Failure to attend
27. If a party or intervenor who has been given notice of a hearing in accordance with subsection 25(2) fails to attend, the Commission may proceed with the hearing and complete its review in the absence of that party or intervenor.
Subpoenas
28. (1) A party may, at any time before the conclusion of a hearing, request the Commission to apply to a justice of the peace for a subpoena compelling a person to appear before the Commission to give evidence and to bring any documents specified in the subpoena.
Travel expenses
(2) The Commission shall pay travel expenses, in the amount set out in Tariff A of the
Federal Courts Rules, to every person compelled by subpoena to appear before it.
Pre-hearing conferences
29. (1) If a hearing is to be held, a pre-hearing conference between the parties shall be scheduled by the Commission to
(a) direct the pre-hearing production of documents by a party;
(b) determine whether a subpoena will be required in respect of any person who may be required as a witness;
(c) direct a party to provide further information regarding its position;
(d) develop an agreed statement of facts or obtain admissions that might facilitate the hearing;
(e) attempt to simplify the matters in dispute between the parties, including the resolution of some or all of them;
(f) determine the conduct of the hearing, including the order in which the parties will proceed, the number and identity of witnesses and the estimated time required; or
(g) decide any other matter that may aid in securing a just, expeditious or inexpensive disposition of the review.
Require attendance
(2) If a representative is acting for an applicant, the Commission may direct that the applicant be present at the pre-hearing conference.
Single Commissioner
(3) A pre-hearing conference may be conducted by a single Commissioner or an employee of the Commission.
Examination outside hearing
30. (1) At the request of a party, the Commission may consent to the examination of a person outside a hearing, having regard to
(a) the expected absence of the person at the time of the hearing;
(b) the age or any illness or infirmity of the person;
(c) the distance the person resides from the place where the hearing will be held; and
(d) the expense of having the person attend the hearing.
Directions
(2) In giving its consent under subsection (1), the Commission shall give directions regarding the time, place and manner of the examination, the notice to be given to the person being examined and to the other parties, the attendance of any other witnesses and the production of any requested documents or other material.
Cross-examination
(3) Other parties may cross-examine any person examined outside a hearing.
Copies of transcript
(4) A party submitting transcribed evidence shall provide a copy of the transcript, at its own expense, to the Commission and to all other parties.
Adverse witnesses
31. (1) Subject to subsection (4), a party may call another party as a witness at a hearing by requesting that a subpoena be delivered and travel expenses be paid to that party in accordance with subsections 28(1) and (2).
Corporations
(2) If the other party is a corporation, it shall provide as a witness an officer or director of the corporation who has knowledge of the facts in issue.
First nation
(3) If the other party is a first nation, it shall provide as a witness the person who administers the taxes of the first nation or another person who has knowledge of the facts in issue.
Notice
(4) A party shall give another party at least five business days notice of its intention to call that party or a person referred to in subsection (2) or (3) as a witness, unless the other party or that person is in attendance at the hearing.
Compliance and Costs
Non-compliance
32. If an applicant fails to comply with these Regulations, the Commission may dismiss the request for review.
Time periods variable
33. The Commission may, on the application of a party, extend or shorten any period provided for in these Regulations.
Variances
34. If it is necessary to secure the just, expeditious or inexpensive hearing of a request for review, or to accommodate the customs or culture of the first nation in respect of which a hearing is held, the Commission may vary any procedure provided for by these Regulations.
Costs
35. No costs shall be awarded in any review.
Decisions
Decisions of the Commission
36. (1) All decisions and orders of the Commission in a review shall be issued in written form and shall be accompanied by written reasons.
Publication
(2) A decision or order of the Commission, and the accompanying reasons, shall be published in the
First Nations Gazette or on an Internet site maintained by the Commission.
Provision of copies
(3) The Commission shall provide a copy of each decision, order and accompanying reasons to all parties and intervenors and make copies of them available for inspection by the public at its offices.
Compliance period
(4) An order made under paragraph 33(3)(
a) of the Act shall set out the period within which the first nation shall implement the required remedy.
REVIEWS UNDER SUBSECTION 33(2) OF THE ACT
Notice of review
37. (1) If the Commission decides to conduct a review under subsection 33(2) of the Act, it shall deliver a notice of review to the first nation that is the subject of the review.
(a) if the Commission is of the opinion that the first nation has not complied with the Act or a regulation, identify the provision of the Act or regulation in question and the reason that the Commission believes it has not been complied with; and
(b) if the Commission is of the opinion that the first nation has unfairly or improperly applied a law, identify the law in question and the reason that the Commission believes it has been unfairly or improperly applied.
Production of documents
(3) The notice of review may require a first nation to produce any documents set out in the notice relating to the subject of the review.
Publication of notice
(4) Within 10 business days after the delivery of a notice of review, the Commission shall publish a notice of the proposed review on an Internet site maintained by the Commission and deliver a copy of the notice to the First Nations Financial Management Board.
Reply by first nation
38. (1) A first nation that receives a notice of review may file a reply within 10 business days after delivery of the notice.
Content of reply
(2) A reply to a notice of review shall identify the notice to which the reply relates and set out
(a) the name, address and telephone number, and any available fax number and e-mail address, of the first nation and of any representative acting on behalf of the first nation;
(b) an address for delivery of documents, if different from the address of the first nation or its representative;
(c) an outline of the position that the first nation takes in response to the allegations set out in the notice;
(d) an admission or denial of each allegation of fact contained in the notice;
(e) a concise statement of any additional facts and any law on which the first nation intends to rely; and
(f) any other information that the first nation believes the Commission requires in order to conduct the review.
Failure to reply
(3) If a first nation fails to file a reply, the Commission may proceed with the review.
Statutory declarations
39. (1) The Commission may require confirmation, by way of a statutory declaration, of any facts alleged in a reply that have not been admitted.
Cross-examination on declaration
(2) A party who has submitted a statutory declaration shall make the deponent of the declaration available for cross-examination by the Commission on the content of the declaration.
(a) accept evidence that is not given on oath or evidence that would not ordinarily be admissible in a court of law;
(b) at the request of a party, require another party to provide the Commission with any documents necessary to the conduct of its review; and
(c) direct that written submissions be filed.
Adding intervenor
41. (1) Any person or organization may apply to the Commission to be added as an intervenor
(a) if a hearing is to be held, at any time before the hearing begins; and
(b) in any other case, at any time before the decision on the review is rendered.
(a) add the person or organization as an intervenor;
(b) direct the person or organization to provide the Commission with additional information in support of the application; or
(c) reject the application.
Adding Board as intervenor
(3) If the First Nations Financial Management Board makes an application in accordance with subsection (1), the Commission shall add the Board as an intervenor for the purpose of making representations as to the impact of any potential remedy.
Hearing
42. (1) The Commission may at any time direct that a review be set down for a hearing and, at the request of the first nation, shall hold a hearing.
Procedures for hearing
(2) Section 20, subsection 25(2) and sections 26, 27 and 33 to 36 apply, with any modifications that are necessary, to a hearing directed under subsection (1).
COMING INTO FORCE
